Dhondiba vs The State Of Maharashtra

                                      1                   Criwp. No.473/10

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                BENCH AT AURANGABAD




                                                                      
                                              
                   CRIMINAL WRIT PETITION NO.473 OF 2010



     1.       Dhondiba s/o Namdeo Dhonde,




                                             
              Aged 55 yrs, Occ.Service,
              R/o & Tq. Ashti, Dist. Beed

     2.       Kusumbai w/o Dhondiba Dhonde,
              Aged 50 yrs, Occ.Nil,




                                   
              R/o & Tq. Ashti, Dist. Beed              ..PETITIONERS


              VERSUS
                       
                      
              The State of Maharashtra                 ..RESPONDENT


     Mr G.K. Thigle, Advocate for the petitioners;
     Mr G.R. Ingole, A.P.P. for the respondent
      


      
   



                              CORAM :  A.H. JOSHI, J.

DATE : October 22, 2012 ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith and is heard by consent.

2. Heard. Perused petition and the annexures.

3. The petitioners are accused in a trial for offence under Prevention of Corruption Act, 1988 for ::: Downloaded on - 09/06/2013 19:19:10 ::: 2 Criwp. No.473/10 possessing dis-proportionate assets. They have filed application before learned Special Judge, praying that the Court may direct that the prosecution should produce certain documents which relate to certain enquiries prior to first information report and those have been referred to in the charge-sheet and pertain to same fact of matter. Second prayer is for calling the witness.

4. This Court asked learned Advocate for the petitioners following questions:-

(a) Is the evidence of prosecution closed ?

(b) Was the application under section 311 of the Code of Criminal Procedure filed after the defence had to begin its evidence?

5. Learned Advocate for the petitioners' reply to questions asked by this Court is as follows :-

(a) question(a) : The evidence of prosecution is not closed.

(b) question(b) : The defence evidence has not begun.

6. Sufficiency and adequacy of evidence to be brought by the prosecution is a matter of choice, decision, discretion and prerogative of the ::: Downloaded on - 09/06/2013 19:19:10 ::: 3 Criwp. No.473/10 prosecution.

7. It may happen that the prosecution may bring the evidence half heartedly or with incomplete or inadequate or even not conforming to the sequence of events.

8. If any such deficiency is left by the prosecution and/or incomplete evidence is brought,by the prosecution, it is a matter of the right, skill and art available at the command of the defence to question the worthyness of the evidence tendered by prosecution in such deficient manner.

9. Even otherwise, benefit of any such deficiency depending upon its value and nature would always go in favour of accused.

10. If the prosecution does not want to rely on certain documents, it is prosecution's prerogative to omit to produce or call these documents.

11. The accused has no right to call for production of documents which accused believe that the ::: Downloaded on - 09/06/2013 19:19:10 ::: 4 Criwp. No.473/10 prosecution should have produced, so long evidence relied upon the prosecution is being produced, except for the purposes of cross-examination.

12. Therefore, the accused have no say in this matter whatsoever to urge that prosecution ought to have produced certain evidence, but did not, cannot be a ground to invoke inherent power of court under Section 311 of Cr.P.C.

13. If at all the accused desire that these documents and witnesses are to be cited as defence witnesses and to be called, a stage thereof would come at appropriate time/stage in the trial i.e. after prosecution closes its evidence. This right of the accused and the stage is yet to accrue.

14. Section 311 of the Code of Criminal Procedure is a device or path finder for a party, either the prosecution or defence whosoever, who is leading the evidence for invoking inherent jurisdiction of the court and not a device of traverse for a party who is yet to begin its evidence.

15. However on facts of present case, ostensibly an application of present nature is vexatious, and aimed at stalling the trial. It may be that due to sheer scare, the accused appear to be under belief that they would more comfortable if for one or other reason, the trial is stalled.

16. It is evident that in present case, section 311 is sought to be invoked and is brought to abuse than its due and reasonable recourse. The application purportedly under section 311 of the Code of Criminal Procedure was filed mostly, as a device of stalling the trial. The trial pertains to year 2000 and the event is far older. Filing of such applications is ostensibly evident as to its object and intent.

17. The application totally lacks the bonafides.

Therefore, no interference is called for. Petition is dismissed. Rule is discharged.

(A.H. JOSHI, J.) amj/criwp473.10 ::: Downloaded on - 09/06/2013 19:19:10 :::